Abstract

Traditional state v. state war is largely a relic. How then does a nation-state protect itself - preemptively - against the unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based "strict-scrutiny" approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism. Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, "A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law." Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, "A Response ot Amos Guiora's Article on Pre-Emptive Self-Defence Against Non-State Actors.".